1. One Nilmony Chakravarti was entitled to a turn of worship of a deity known as Malai Chandi which ex-tended to 9 days in the year. Nilmony died on the 14th November 1913. The plaintiff claimed that turn of worship as his heir. Nilmony, however, a few days before his death executed a kobala in favour of defendant No. 1 in respect of 33 days out of his turn. The kobala purports to have been for consideration for a sum of Rs. 300, said to have been spent during the illness of Nilmony. The learned Subordinate Judge held that there was no consideration for the kobala and that undue influence had been exercised over Nilmony who was ill and that misrepresentations had also been made to him. He held that the transfer was only of the turn of worship irrespective of the debutter property and as according to him no custom for such transfer had been made out, there was not an effective transfer. On both the above grounds be decreed the plaintiff's suit. He, however, found that the defendant No. 1 was on the line of succession, being the sister's son of the she-bait Gobinda Chakravarti, and that he could become a shebait if Gobinda died without any sons.
2. On appeal the learned District Judge agreed with the trial Court that it had not been established that there was money consideration for the document. He, however, found that the defendant and his wife resided for some time on a portion of Nilmony's homestead, and that as Nilmony's health did not permit him to perform the pooja, defendant No. 1 had for some time performed the pooja; that during his last illness defendant No. 1 and his wife attended on him and that the kobala was executed openly, and after consultation with other shebaits: that the document had been presented by Nilmony himself for registration and he was satisfied-upon the evidence that Nilmony quite understood what he was doing, and although the word 'sale' had been used in the kobala, he found that Nilmony desired to convey the pala to the extent of 33 days to defendant No. 1; that he had by a subsequent document made a gift of the remaining six days to his Purohit Dharmadass. He also found that it was a perfectly natural thing for Nilmony to desire to transfer the right of worship to defendant No. 1. On the death of Kalachand, who was the original defendant, his son Nonilal has been brought upon the record. The learned Judge did not find that Nilmony was induced to make the transfer by undue influence, and he held that although the document purported to be a kobala it should be looked upon as a gift, although the consideration mentioned was fictitious and imaginary. He also held that transfers of palas bed been proved to have been made for a great number of years beginning from at least 1259 B.S. (1852 A. D.). He held upon the oral evidence and the documents produced before him, principally Exhibits C, D, E, F, G, J, K, that the palas of this Thakurani were transferable by custom. He found nothing in the cross-examination of the shebait witnesses to indicate that 'the custom of transfering palas was restricted to transferences of palas along with the debutter land.' Ha held 'immemorial origin, continuity and certainty of the custom of transfers of palas of the goddess in question established' and disagreeing with the learned Subordinate Judge, he dismissed the plaintiff's suit.
3. It was urged before us on behalf of the appellants (1) that no custom had been established and the immemorial origin referred to by the District Judge was an overstatement, as there was no evidence of any transfer before 1852; (2) that the transfer was bad, not being to one in the line of succession or to a shebait, but to a person who, although connected with one of the shebaits and his possible heir, was not competent to take; (3) that the transfer of a pala apart from the debutter property was void; (4) that the document, being one of sale stated to be for consideration; ought not to be treated as a gift; (5) that as the man was suffering from death illness, the document having been executed on the 10th November 1913 and registered on the 13th November and the man dying on the 14th, the transfer could not be treated as being inter vivos; (6) that the division of the pala into two portions, 33 days to defendant No. 1 and six days to another, rendered both illegal.
4. In answer to the above it was argued that having regard to a series of transfers dating from 1852 and the finding arrived at by the learned Judge as regards custom, such finding could not be set aside or questioned on second appeal; that the transfer in this case was to one in the line of shebaits, not to a stranger, but to a person who was performing the service in the life-time of Nilmony; that the transfer was openly made with the consent of several other shebaits and ought to be looked upon as for the benefit of the trust, which is the governing principle for determining such questions; that the transfer of a pala apart from transfer of the property was not a question which was raised at the earlier stages of the case; that the document in question showed that the transfer was to Kalachand 'as a shebait,' but whether these words actually covered a transfer of the debutter property or not was not of importance as the plaintiff had merely prayed to have the transfer of the turn of worship set aside; that there was evidence on the record to show that the plaintiff had himself sold his share in some of debuter properties which he purported to have inherited from Nilmony; that an ostensible deed of sale may be treated as a deed of gift and it had been rightly treated as such in this case; that the transfer was not affected by the fact that the man died shortly after the execution of the document; that a pala being divisible by inheritance, (here was no reason why the holder who had the right of gift inter vivos could not apportion the period of his tarn to different persons; that in all these cases the principal thing to be kept in view was whether the transaction was against the interest of the deity, if not so found, there was nothing on principle which prevented such a division; that no point as to the divisibility of the pala had been made in the trial and the appeal Courts and not even taken in the grounds of appeal before this Court and it should not, therefore, be entertained. It is, therefore, necessary to examine the case at some length.
5. The origin of this foundation is not known. The Thakurani is established in a village. The plaint mentions 33 persons as the present shebaits, all of whom have been made defendants. They are Banerjis, Mukerjis, Chatterjis, Chakravartis, Boys and consist of males and females. Defendant No. 1, in his written statement, gives the names of 70 other persons, males and females, including Chakravartis, Chatterjis Banerjis and one Sarkhel. The Chakravartis appear to have been the original shebaits, and daughters, sisters' sons, widowed daughters in law, maternal grand father's heirs have taken by transfers or descent. In what sense all these persons are shebaits is not very clear. Whether they have merely a right of management, or are the representatives of priests who served the idol, does not appear. There is some immoveable debutter property and offerings are also received which are taken by the persons enjoying the palas. There is some evidence, says the Subordinate Judge, that the palas have been assigned and transferred to one who could come in the line of succession if there was no direct descendant in the line of the son.' Whether the endowment is private or public does not clearly appear, although it is apparently the latter as a village sanctuary is mentioned and offerings from the public are received. The transactions evidenced by documents are all of them conveyances except one the earliest in date which is a Will (Exhibit K) dated 30th Sravan 1259, corresponding to 19th August 1852. It transferred the entire pala of the testator and his share of the debutter property to his widowed daughter-in-law as she was the most competent person to carry on the worship, by which supervision of the worship was meant. The testator had no son, but had a daughter with a son who was residing elsewhere. The next in order of date is a kobala Exhibit G dated 30th Sravan 1289 (14th August 1882). The vendor had got the pala and property by inheritance but as he was not a resident of the place he sold both to a co-sharer shebait. There are two kobalas. Exhibits C & D, in 1292. Both the vendors were females who had inherited the pala and property from their husbands. In one the sale was to a co-sharer shebait, in the other to reversionary heirs, but both sales included the pala and property Having regard to the names of the shebaits who are Banerjis, Mukerjis, Chatterjis, etc it is not a violent inference that the present shebaits represent both the male and female lines of the original shebaits and also transferees by will or sale. It is clear that nonresident shebaits have from time to time, for a great number of years, transferred their rights to co-sharer shebaits. Exhibit J, a kobala dated 19th Sravan 1292 (6th August 1885) is, however said to be an instance of a sale to a stranger, but the document itself refers to him as a shebait and we must treat him as snob.
6. In speaking of custom in connection with the transfer of the rights of shebaits in respect of shrines and sanctuaries, there is likelihood of confusion between the rules of the shrines and the rules observed amongst those who manage the shrines, between the rule's of a seat and the rules of management of the endowment, between shebaits as trustees of the endowed property and as managers of the service in respect of which they are holders of an office. We have nothing to do in this case with sectarian rules, but with an alleged custom of transfer of ' turns of worship by shebaits. The requisites of custom are that it should be ancient and invariable, uniform, reasonable, not immoral, certain and consistent. About its being ancient it must have existed 'so long that the memory of man runneth not to the contrary,' In Garurudhwaja Pershad Singh v. Saparandhwaja Pershad Singh 27 I.A. 238 : 28 A. 37 : 10 M.L.J. 267 : 5 C.W.N. 33 : 2 Bom.L.R. 831 : 7 Sar. P.C.J. 724 P.c.)the evidence of an unbroken custom for 80 years was held sufficient. It wad also held in Ramanathan Chetti v, Murugappa Chetti 29 M. 283 : 4 C.L.J. 189 : 10 C.W.N. 825 : 33 I.A. 139 : 1 M.L.T. 327 : 3 A.L.J. 707 : 16 M.L.J. 265 : 8 Bom. L.R. 498 (P.C.) that an unbroken usage for a period of 19 years was conclusive evidence of a family arrangement as to palas, or turns of worship, to which the Court was bound to give effect. Here we have evidence of some transactions which date as far back as 1852 and the question is, can we deduce the necessary elements of custom from them. It appears from the evidence that transfers of palas were not always made to heirs or co-sharer shebaits, but in one case at least to a relative considered competent to carry on or super-wise the worship. The periods of the -turns have been determined by descent and apparently the shebaits have treated themselves as co-sharers of the endowed properties, their shares being determined in the same manner as if the property was secular, inheritable by descent, that is to say, a shebait with a pala of 39 days in the year has been treated as co-sharer of the endowed property to the extent of 39/365. In every instance so far as the documents are concerned the co sharer's pala and his so called share in the debutter property have been transferred at the same time. It is from that fact that the learned Subordinate Judge inferred that the custom pointed to transfers of both of them jointly, that one was not separated from the other. He considered the joint character of the transfer reasonable, as the worship was likely to suffer if the property was separated from the sheba. The property in this case was undoubtedly endowed for the sheba and must be so used. The managers of the service are also managers of the endowed property in this case, and it is evident that for convenience of management the shebaits have treated themselves as co-sharers in respect of the palas and the endowed property, but in no instance has a shebait treated his pala and right of management of the debutter property separately. The two are intimately associated together and do not appear to have been dealt with one independently of the other. The sub division has been, as a rule, by descent, although occasionally varied by transfers within a limited circle. The transferee had both at the same time, and after his death his heirs have become vested with his rights to both by descent. The mere transfer of the pala involves the possibility of its discontinuance, on failure of funds. The property was endowed for securing the permanence of the worship. It further involves two lines of descent. If the transferor merely transfers the pala and keeps hold of his share of the property, two separate lines of descent may be created--one for the pala and one for the property--each disconnected from the other. In this particular instance the transfer appears to be merely of the pala and the offerings, spoken of in the document as utpana profits. It does not deal with the immoveable property. If it was intended to deal with the landed property, the document would have been differently stamped, particulars of the property would have been given as required by the Registration Act and the extent of the share would have been mentioned. From these circumstances it has been taken by both the Courts below that the pala only has been transferred and with it the right to take the offerings. The plaintiff has treated Nilmony's share of the endowed property as his by descent and the transferee has not so far questioned it. There is a distinction between the right of management and the right of service in connection with temples, private and public, and between compulsory and private alienations. Private alienations have not been held as absolutely prohibited, but alienations to strangers have not been favoured. In the case of private alienations the prohibition has not been held to be of general application, and custom and usage have been held to govern and prevail over the text law which prohibits both partition and alienation. These question are discussed at some length in Rajaram v. Ganesh 23 B. 131 : 12 Ind. Dec. (N.S.) 87. It is useless to refer to the decided cases in detail as they depend upon separate sets of fasts and circumstances, although some general principles may be deduced from them which may be thus summarised. Custom, if established, may render private alienations valid, but that, in determining the Question, the benefit to the idol must be taken into consideration as a matter of primary importance. Property dedicated to a deity is extra commercium, and is entitled to special protection of the Sovereign whose duty it is to intervene to prevent fraud and waste [Bhupati Nath Smrititirtho v. Ram Lal Mitra 3 Ind. Cas. 642 : 10 C.L.J. 855 : 37 C. 128 : 14 C.W.N. 18]. Persons having the management and possession of the property of an idol must of necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property [Prosunna Kumari Debya v. Golab Chand 14 B.L.R. 450 : 3 Sar. P.C.J. 449 : 23 W.R. 263 : 2 I.A. 145 : 3 Suth. P.C.J. 102. The manager of the endowment is by virtue of his office the administrator of the property attached to it. As regards the property he is in the position of a trustee [Ramanathan Chetti v. Murugappa Chetti 29 M. 283 : 4 C.L.J. 189 : 10 C.W.N. 825 : 33 I.A. 139 : 1 M.L.T. 327 : 3 A.L.J. 707 : 16 M.L.J. 265 : 8 Bom. L.R. 498 (P.C.)]. Sale of the trusteeship for pecuniary gain is not permissible: [Rajah Vurmah Valia v. Ravi Vurmah Kunhi Kutty 1 M. 235 (P.C.) : 4 I.A. 76 : 3 Sar.P.C.J. 687 : 1 Ind. Jur. 134 : 3 Suth. P.C.J. 382 : 1 Ind. Dec. (N.S.) 156]. The sale of a priestly office for the benefit of a shebait is illegal: Narasimma Thatha Acharya v. Anantha Bhatta 4 M. 391 : 1 Ind. Dec. (N.S.) 1107 and Kuppa Gurukal v. Dorasami Gurukal 6 M. 76 : 7 Ind. Jur. 75 : 2 Ind. Dec. (N.S.) 331. Right of worship is property, but has not all the incidents of property. A distinction has been made between transfers inter vivos and transfers by will. It has been said that the shebait is manager or quasi trustee for the benefit of the idol, and as the office endures only for his life he has no right of devise by Will, as his Will only comes into operation on his death when there is nothing for him to alienate [Rajeshwar Mullick v. Gopeshwar Mallick 35 C. 226 : 12 C.W.N. 323 : 7 C.L.J. 316]. This case is not is consonance with Mancharam v. Pranshankar 6 B. 298 : 6 Ind. Jur. 426 : 3 Ind. Dec. (N.S.) 655, which was disapproved in Rajeshwar Mullick v. Gopeshwar Mullick 35 C. 226 : 12 C.W.N. 323 : 7 C.L.J. 316, but it has since been followed in this Court in Nirodbarani Bad v. Shiba Das Pal 3 Ind. Cas. 76 : 86 C. 975 : 13 C.W.N. 1084, where ' clear benefit to the Thakur' was considered to be the right standard. In the case before us there is evidence of transfer of the pala and property by Will. The deed of sale has been held inoperative as such, but the learned Judge has treated it as a deed of gift, as a transaction inter tivos. The donor, however, who was very ill, died within a very few days of the execution of the document, and it seems a fairly reasonable deduction that it was executed in anticipation of his death and to operate after his death. The document mentions money consideration which has been disbelieved by both the Courts. We should not treat untrue recitals in deeds with any degree of complacency when the giver and the taker are parties to them. They are intended to mislead and may acquire the sanctity of truth with age. This very transaction, although discarded by the Courts as a conveyance, may yet be relied upon by future shebaits as affording good evidence of custom. This transfer, however, was not for pecuniary advantage. There is evidence that the giver was not actuated by any dishonest motives. He was on his death bed and acted after consultation with other shebaits. He had no near heirs. He was anxious to provide for due carriage of the sheba and he knew the taker who had done the work satisfactorily when he was ill. These circumstances may lessen the heinousness of a false recital, namely, that of a fictitious consideration, but all the same the transaction must be looked upon as reprehensible, especially as it relates to a religious trust. The giver made a lying statement to benefit the taker and it is clear that the taker was primarily responsible for it. Both took a discreditable part. The learned Judge has, on the strength of Ismail Mussajee Mookerdam v. Hafie Boo 33 C. 773 : 3 C.L.J. 484 : 10 C.W.N. 570 : 3 A.L.J. 863 : 8 Bom.L.R. 379 : 16 M.L.J. 166 : 1 M.L.T. 137 : 33 I.A. 86 (P.C.), treated the document as a deed of gift. There was an issue in that case as to whether the donor who was capable of making the transfer was of unsound mind or not, but none with regard to undue influence which was the case suggested at a later stage, when the first contention failed. The Judicial Committee found the evidence insufficient to establish the latter contention. They took into account the existing circumstances at the time of the transaction, namely, that the mother was extremely hostile to her son and did not intend him to take; that she was old and in case of her death her son would have inherited the greater part of her property. The only way to prevent it was to transfer it in her lifetime. A power of attorney which had been executed by the mother showed that she contemplated an absolute gift to the daughter. The lady's object could not have been attained by any benami transaction. It was found that the consideration mentioned in the dead of transfer did not pass, but having regard to the above facts the Judicial Committee held that the deed of sale was intended to be a deed of gift and treated it as such. The transfer in the case was not for pecuniary advantage and was intended to provide for the due performance of the poojah and there was no near heir to transfer to and it may. not be unjust to treat it as a deed of gift and although it was intended to operate as a Will, having regard to, the fact that transfers by Will have taken place, and as early as 1852, that circumstance also may be taken in its favour. The learned District Judge has differed from the Subordinate Judge on the question as to whether the pala can be rightly held transferable by custom although the debutter property has not been included. The latter has strongly relied upon Mahamaya Debi v. Haridas Haldar 27 Ind. Cas. 400 : 20 C.L.J. 183 : 42 C. 455 : 19 C.W.N. 208. Evidence as regards the custom in this case has gone up to 1852 and may be held established, but the severance of the pala from the property does not seem to have taken place before this transaction and cannot be held established by custom. Their separation is fraught with consequences which may not be beneficial to the deity. They are intimately associated with each other. Allowing the pala to one and the property to another is likely to create trouble to the detriment of the endowment. They were not intended to be severed and have not been treated as severable, Division by inheritance is on a different basis from division by transactions inter vivos or by devise. In this case the donor's 39 days have been divided into two parts, 33 days to Kalachand and 6 days to the purohit Dharmadas, whom we do not find spoken of as a member of the family, Although objection to such division of the pala does not appear to have been taken before this, the respondent cannot be said to have been taken by surprise. It is a point of law. He had sufficient time to consider it. The fact of division is admitted. In the Kalighat temple case, Mahamaya Debi v. Haridas Haldar 27 Ind. Cas. 400 : 20 C.L.J. 183 : 42 C. 455 : 19 C.W.N. 208, palas were found heritable, partible and also devisable by custom. They had been the subject of sales, gifts, mortgages and. lease?, although within a limited circle. The palas seem to have been treated as not connected with the immoveable property, if any, belonging to the maker. The facts of that case are different. The transactions extended over a long period and were of a different character. That case deals with accepted principles but otherwise does not apply to this case. We do not think that it was competent for Nilmony to sub-divide the period of his pala. The palas would again be sub divided by descent and instead of one branch having 39 days, there is a possibility of three branches being created with two divisions of the pala and one branch holding the property. There may be sub divisions again inter vivos on the strength of the present sub division. We do not certainly think that it is a reasonable method of management of the property or of conducting the sheba. It is bound to create dissension and confusion, which certainly cannot be for the benefit of the Thakur. There is every likelihood of the property being diverted for other purposes and dissipated and the sheba discontinued. In that view we think the appeal ought to be allowed. If it had merely been a question of the sub-division of the pala into two parts and if it was said that opportunity should be given to the defendant to give evidence on the point we would have remanded the case, but as we agree with the view taken by the Subordinate Judge that the custom of separation of the pala and the property has not been proved and of the unreasonable character of such separation, that it cannot be for the benefit of the deity, the appeal should be allowed on that ground alone. Each party to pay his own costs in all Courts. The defendant will not be held liable for rendering any account of the offerings or the dealings with them, The plaintiff will not be allowed to recover anything from him on that account. The transfer is held inoperative and void and there will be a declaration to that effect.